MCCORMICK v. SHEA ET. AL.

99 N.Y. Supp. 467

June 1, 1906
FACTS:
This is an action on a promissory note against Thomas J. Shea as maker and defendant
Annie A. Shea as indorser.
It is conceded that the indorsement of Annie Shea was cancelled. Defendant contends that
the indorsement was cancelled by a representative of defendants attorney in the presence of
plaintiff. Plaintiff, on the other hand, claims he never authorized such cancellation and protested
against the same. He further claims that there was no consideration for such, cancellation. Even
so, if he did authorize and agree to the cancellation, the indorser was released, as a person
secondarily liable on a negotiable instrument is discharged "by the intentional cancellation of his
signature by the holder."
The jury believed in the version of the defendants. The mere fact that the appellate court
reached a different conclusion than that of a jury is not sufficient to merit a reversal of the
decision. A reversal is only justified if it clearly appears that the fair preponderance of proof is
really on the side of the defeated party.
ISSUE:
Whether the court erred in holding that the burden of proof is on the lies upon the party
who alleges the cancellation was made under mistake or without authority.
HELD:
No. The Negotiable Instruments Law, Section 123 expressly provides:
A cancellation made unintentionally or under a mistake or without the
authority of the holder is inoperative; but where an instrument or any
signature thereon appears to have been cancelled, the burden of proof lies on
the party who alleges that the cancellation was made unintentionally or under
a mistake or without authority
The burden, therefore, was on him to show that it was so canceled without authority.